A.M. No. 10-7-17-SC – Mercantile Law – Intellectual Property Law – Copyright – Plagiarism
Legal Ethics – Judicial Ethics – Integrity
On April 28, 2010, the Supreme Court issued a decision which dismissed a petition filed by the Malaya Lolas Organization in the case of Vinuya vs Romulo. Atty. Herminio Harry Roque Jr., counsel for Vinuya et al, questioned the said decision. He raised, among others, that the ponente in said case, Justice Mariano del Castillo, plagiarized three books when the honorable Justice “twisted the true intents” of these books to support the assailed decision. These books were:
a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law (2009);
b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve Journal of International Law (2006); and
c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005).
As such, Justice del Castillo is guilty of plagiarism, misconduct, and at least inexcusable negligence.
Interestingly, even the three foreign authors mentioned above, stated that their works were used inappropriately by Justice Del Castillo and that the assailed decision is different from what their works advocated.
ISSUE: Whether or not there is plagiarism in the case at bar.
HELD: No. Even if there is (as emphasized by the Supreme Court in its ruling on the Motion for Reconsideration filed by Vinuya et al in 2011), the rule on plagiarism cannot be applied to judicial bodies.
According to Black’s Law Dictionary: Plagiarism is the “deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own.”
This cannot be the case here because as proved by evidence, in the original drafts of the assailed decision, there was attribution to the three authors but due to errors made by Justice del Castillo’s researcher, the attributions were inadvertently deleted. There is therefore no intent by Justice del Castillo to take these foreign works as his own.
But in plagiarism, intent is immaterial.
On this note, the Supreme Court stated that in its past decisions, (i.e. U.P Board of Regents vs CA, 313 SCRA 404), the Supreme Court never indicated that intent is not material in plagiarism. To adopt a strict rule in applying plagiarism in all cases leaves no room for errors. This would be very disadvantageous in cases, like this, where there are reasonable and logical explanations.
On the foreign authors’ claim that their works were used inappropriately
According to the Supreme Court, the passages lifted from their works were merely used as background facts in establishing the state on international law at various stages of its development. The Supreme Court went on to state that the foreign authors’ works can support conflicting theories. The Supreme Court also stated that since the attributions to said authors were accidentally deleted, it is impossible to conclude that Justice del Castillo twisted the advocacies that the works espouse.
Justice del Castillo is not guilty of misconduct. The error here is in good faith. There was no malice, fraud or corruption.
No Inexcusable Negligence
The error of Justice del Castillo’s researcher is not reflective of his gross negligence. The researcher is a highly competent one. The researcher earned scholarly degrees here and abroad from reputable educational institutions. The researcher finished third in her class and 4th in the bar examinations. Her error was merely due to the fact that the software she used, Microsoft Word, lacked features to apprise her that certain important portions of her drafts are being deleted inadvertently. Such error on her part cannot be said to be constitutive of gross negligence nor can it be said that Justice del Castillo was grossly negligent when he assigned the case to her. Further, assigning cases to researchers has been a long standing practice to assist justices in drafting decisions. It must be emphasized though that prior to assignment, the justice has already spelled out his position to the researcher and in every sense, the justice is in control in the writing of the draft.
Justice Maria Lourdes Sereno dissenting
There is such a thing as judicial plagiarism. And though judicial plagiarism does not necessarily carry with them the imposition of sanctions nor does it mean that a case should undergo retrial based on it, the existence of which should be acknowledged.